January 2022 E-Update


Click here to view entire E-Update as a PDF


NLRB Poised to Reverse Course on Work Rules, Joint Employer Status and Mandatory Arbitration Agreements

As we discussed in our August 13, 2021 E-lert, the first official memo issued by General Counsel Jennifer Abruzzo for the National Labor Relations Board set forth a laundry list of issues that she intended to address – many of which impact all employers, whether unionized or not. For more, click here.

What Are the Parameters for An Employer’s Requests for Medical Records Under the ADA?

The Americans with Disabilities Act governs employers’ ability to make medical inquiries of employees, including requests for medical records. And where the ADA permits employers to make such inquiries, it also requires employees to comply with those requests, as the U.S. Court of Appeals for the Fourth Circuit recently affirmed in a case that also provided a useful summary of the scope of such inquiries. For more, click here.

Employers May Request FMLA Recertification If Circumstances Change

A recent case provides a good reminder to employers that they can – and should – request recertification of an employee’s need for leave under the Family and Medical Leave Act if an employee’s use of such leave suddenly changes. For more, click here.


Update on Enforcement Deadlines for CMS Vaccination Mandate. At this time, the Center for Medicare and Medicaid Services’ interim final rule requiring Medicaid and Medicare-certified healthcare providers to mandate vaccination against COVID-19 for all applicable staff (as discussed in our November 8, 2021 E-lert) is now in effect in all states. For more, click here.

Employer Health Plans Must Cover Costs of At-Home COVID Tests. As of January 15, 2022, employer-sponsored group health plans (as well as insurance companies) are required to fully cover eight over-the-counter at-home tests per covered individual per month, as explained in DOL guidance. For more, click here.

DOL’s Annual Penalty Increase.  The Department of Labor has announced its annual penalty increases. Due to the passage of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, federal agencies must issue regulations annually to adjust for inflation the maximum civil penalties that they can impose. For more, click here.

Biden Administration Announces Pro-Union Initiative. On January 21, 2022, the U.S. Secretary of Labor announced the “Good Jobs” initiative, ostensibly intended to improve job quality. The pro-union nature of this initiative, however, is clear from the press release, in which the DOL asserts that it will “create access to good union jobs – free from discrimination and harassment – for all workers and job seekers.” For more, click here.

Employers Beware – NLRB and DOL Will Partner on Enforcement. The National Labor Relations Board and Department of Labor have announced an agreement to facilitate information sharing, referrals, joint investigations, and enforcement. The agencies assert that, “The partnership will help ensure that employers pay workers their rightful wages and that workers can take collective action to improve their working conditions without fear of retaliation.” For more, click here.

Does the Employer or Employee Own Those Social Media Accounts? This is the question currently being litigated between a bridal designer and her former employer, a bridal gown company, and the case highlights the need for employers to make sure that they address this issue clearly in any employment agreement. For more, click here.

Collective Action Waivers in Severance Agreements Are Enforceable. Many employers are interested in having employees sign collective action waivers as part of employment agreements, including severance agreements. Such waivers mean that the employees agree that they will not bring or participate in a lawsuit as part of a group. For more, click here.

Arbitration Agreements Only Cover the Signing Parties. And therefore an agreement between an employee and the employer’s parent company could not be enforced by the employer, according to the U.S. Court of Appeals for the Ninth Circuit. For more, click here.

Requests for Accommodations Must Be Sufficiently Specific and Supported. According to the U.S. Court of Appeals for the Sixth Circuit, a request that is lacking in sufficient specificity will not be considered a request for accommodation under the Americans with Disabilities Act. For more, click here.

TOP TIP: Employers, Don’t Ignore COVID Just Because the Vax-or-Test ETS is Gone

Although the Occupational Safety and Health Administration’s attempt to issue a general workplace COVID standard was unsuccessful, employers should not assume that they are off the hook with regard to COVID preventative measures, as one company recently learned. For more, click here.